3.5.1 Overview
Research began with a conventional review of the literature, which found that little has been published on teacher accountability policies: a search of leading scholarly education journals with the term ―teacher accountability‖ yields virtually no theoretical or empirical work on accountability policies for teachers.20 This surprising gap suggested initial study questions, both regarding the nature of teacher policies in New York City, and the degree of alignment between those government policies and the academic education literature. Both policy and scholarly texts were subsequently analyzed, using an iterative process for coding and analysis:
The analytical framework, shown above in Figure 3.7, was utilized to code and classify policies based on their literal content. A typology of teacher accountability policies was developed, classifying policies by who is held accountable for what—whether inputs, process, or outcomes—and further, whether policies are written as determinate or indeterminate. This typology enabled assessment of policies‘ degree of literal alignment with the determinate, outcomes-focused new accountability model.
This analysis was repeated on key policies for other school stakeholders: again, examining who is held accountable, and for what, and whether through determinate or indeterminate policies.
20
The term ―professional accountability‖ appears with some frequency in the education literature (also referred to as ―professionalism‖ or ―professionalization‖). However, despite semantic alignment, the ―professional accountability‖ framework in fact emphasizes teacher inputs and processes, and does not meet the definition of accountability utilized in this study. This is discussed in more detail in Chapter 8.
Teacher policies were subsequently analyzed as symbolic documents, guided by findings from the grounded theory investigation of scholarly texts, aiming to understand the theoretical assumptions, beliefs, and values that underpin them. In this stage of the investigation, qualitative textual analysis was supplemented with quantitative content analysis of key words in multiple policies.
Education Law § 3020-a decisions were analyzed using a grounded theory approach to analyze these decisions as individual cases of the ex ante application of indeterminate government policy for teacher accountability.
Scholarly texts were analyzed using a grounded theory approach, aiming to identify dominant theories, values, beliefs, and assumptions with respect to the inter-related themes of teachers, teacher quality, and accountability. The analytical framework used in the policy analysis matrix was also applied to the scholarly literature to classify evident conceptions of what teachers should be held accountable for.
Finally findings from analyses of policies and the education literature were compared, on both literal and symbolic levels.
As emphasized, the investigative approach was necessarily iterative, but the methods used to collect, code, and analyze data covered the following five general steps: (1) Identify archival documents (government policies and scholarly literature); (2) Code and analyze the literal content of policies; (3) Analyze policies as symbolic documents; (4) Analyze Education Law § 3020-a decisions; (5) Code and analyze views on teacher quality and accountability expressed in the educational literature; and (6) Compare findings on the policies with findings from the educational literature. Each of these steps is described in more detail below.
3.5.2 Sources of archival data
Three primary sources of archival data were used for the study:
1. Public policies governing the work of teachers employed by the New York City Department of Education, such as state and district laws, regulations, rules, and the collective bargaining agreement, as well as the § 3020-a decisions on the ex ante application of policies for teacher accountability;
2. Public policies (government laws, rules, and regulations) governing other public school stakeholders; and
3. Scholarly education literature addressing the topics of teachers and teacher quality, supplemented by mission and policy statements from professional teacher organizations such as the National Board for Professional Teaching Standards, the National
Commission on Teaching and America‘s Future, and the National Council for Accreditation of Teacher Education.
Policy Documents. Six sources of policy documents containing policies governing
teachers and other stakeholders in the New York City public school stakeholders were used to collect policy data (see Appendices A-F for detailed list of policies analyzed):
1. The Constitution of the State of New York 2. Consolidated Laws of New York State 3. New York Codes, Rules and Regulations
4. Bylaws of the Panel for Educational Policy of the Department of Education of the City School District of the City of New York
6. United Federation of Teachers Collective Bargaining Agreement
The following is a brief explanation of how these bodies of policy fit into New York‘s public education governance structure and where they derive their public and legal authority.
New York State education governance structure. The mandate for the very existence of
public schools in New York State is stipulated in the Constitution of the State of New York: ―The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.‖21
As required by the New York State Constitution, the New York State Legislature is charged with establishing and maintaining public schools available to all children throughout the state. As summarized by the New York State Education Department: ―The legal framework for education in New York is established by the state Constitution and by statutes passed by the Legislature‖ (New York State Education Department, 2008).
The New York State Legislature established the New York Board of Regents in 1784 as the state body responsible for setting educational policy for New York State and supervising the New York State Education Department. The Board of Regents—currently composed of 17 members, elected by the State Legislature to serve five-year terms—is authorized by the Legislature to oversee all education in New York State:
Subject and in conformity to the constitution and laws of the state…the regents shall exercise legislative functions concerning the educational system of the state, determine its educational policies, and…establish rules for carrying into effect the laws and policies of the state.22
21
N.Y. Const. art. XI, § 1 22
The Board of Regents (often referred to as ―the Regents‖), in turn, appoint a New York Commissioner of Education, who is ―the chief administrative officer‖ of the State Education Department.23 The Commissioner is charged with general supervision of all schools in New York State (New York State Education Department, 2010b),24 and is granted specific ―powers and duties‖ by New York State law:
The commissioner of education…is the chief executive officer of the state system of education and of the board of regents. He shall enforce all general and special laws relating to the educational system of the state and execute all educational policies determined upon by the board of regents…He shall have general supervision over all schools and institutions which are subject to the provisions of this chapter, or of any statute relating to education, and shall cause the same to be examined and inspected, and shall advise and guide the school officers of all districts and cities of the state in relation to their duties and the general management of the schools under their control...25 At the same time, state law explicitly stipulates the Regents‘ preeminent authority over the Commissioner of Education:
Rules or regulations, or amendments or repeals thereof, adopted or prescribed by the commissioner of education as provided by law shall not be effective unless and until approved by the regents, except where authority is conferred by the regents upon the commissioner of education to adopt, prescribe, amend or repeal such rules or
regulations.26
In summary, New York State Education Law promulgated by the State Legislature governs all public schooling in New York State.27 State law further grants the Regents‘ legal authority to make state education policy:
23
N.Y. Const. art. V, § 4; N.Y. Educ. Law § 101 24
N.Y. Const. art. V, § 4; N.Y. Const. art. XI, § 2; N.Y. Educ. Law §§ 101, 201, 202 25
N.Y. Educ. Law § 305 26
N.Y. Educ. Law § 207 27
The Consolidated Laws of New York are organized into over 90 Chapters. All State Law pertaining to education is covered in Chapter EDN – Education. EDN is organized into nine Titles. Each Title contains
The State Legislature is responsible for enacting the general laws in New York. In doing so, the Legislature often delegates ―rule making powers‖ to the state‘s administrative departments and agencies. These agencies are then empowered to develop and enforce the rules and regulations they find necessary to implement the broad policies adopted by the Legislature. (New York State Department of State, 2011)
The Regents subsequently grant legal authority to the Commissioner of Education to create and enforce the rules and regulations necessary to implement state law mandates. As the New York State Education Department website explains, ―[g]enerally, the Regents set policy while the Commissioner has responsibility for carrying out policy‖ (New York State Education
Department, 2008). The rules and regulations relevant to the governance of state public schools are stipulated in Title 8, Education Department, of New York Codes, Rules and Regulations (NYCRR), in Chapter I Rules of the Board of Regents and Chapter II Regulations of the
Commissioner.28 (See Appendix C for an index to the chapters, parts, and sections of Title 8 analyzed). NYCRR rules and regulations derive legal authority from state law and cite the legal statutes granting their authority.29
New York State Law thus establishes a broad policy framework that encompasses all the state‘s public schools. The New York State Education Department—described in state law as ―the University of the State of New York‖—is ―charged with the general management and supervisions of all public schools and all of the educational work of the state.‖3031 Authority for
multiple Articles; overall, EDN includes a total of 170 Articles. Finally, particular Articles are organized
further into Sections, Subdivisions, Parts, and Subparts. See Appendix B for laws analyzed in this study. 28
NYCRR has 22 Titles. All rules and regulations governing education are contained in Title 8 Education
Department. The entire Title was reviewed to identify relevant parts for closer analysis: those appear in
Chapter I Rules of the Board of Regents and Chapter II Regulations of the Commissioner. See Appendix C. 29
For example, the ―statutory authority‖ for 8 NYCRR, Chapter I, Part 3 is cited as: ―Education Law, §§ 101, 204, 206, 207, 210, 212-c, 214, 215, 216, 217, 218[1], 224, 233-aa [1], [2], [5], 305, 309, 2855[1]-[4], 2857[1], [1-a], 3004, 3204[2], 3205[1], [2], [3], 3212[2][d], 3234[1], 6306[5-b], 6506, 6510, 6510-a, 6511, 6734[b]; L. 1995, ch. 82; L. 2007, ch. 57, part D-2, § 7; L. 2008, ch. 220‖
30
the administration of local public school systems, including New York City, is granted and controlled by the State. Two major bodies of state laws, rules, and regulations govern policy for all New York State public schools: (1) New York State Education Law; and (2) New York Codes, Rules and Regulations, Title 8: Chapter I, Rules of the Board of Regents, and Chapter II,
Regulations of the New York State Commissioner of Education. These two bodies of laws and
regulations are the primary policies governing the New York City public schools.
All education-related policies, rules, or regulations, at both the state and local levels, must fall within, and be entirely consistent with, the education policy framework established by state law. New York City has some policies specific to the New York City schools, as described below, but these must be specifically authorized by the State Education Department, or, for some matters, the State Legislature: At the same time, New York State is also obligated to comply with the federal public education law associated with Title I funding, which is incorporated into state education law. Thus, each governmental level must, as a minimum, comply fully with applicable laws, rules and regulations of the superior governmental entity; a lower governmental entity may
add laws, rules or regulations, but only insofar as those are in no way inconsistent with, or in
violation of, higher-level government policy.32 The body of laws, rules, and regulations governing New York State public schools is thus tightly organized, with a clearly delineated hierarchy of legal authority and control. New York State in fact claims to be exemplary in this
31
As the NY State Education Department website explains, the University of the State of New York ―consists of all elementary, secondary, and postsecondary educational institutions, libraries, museums, public
broadcasting, records and archives, professions, Vocational and Educational Services for Individuals with Disabilities, and such other institutions, organizations, and agencies as may be admitted to The University. The concept of The University of the State of New York is a broad term encompassing all the institutions, both public and private, offering education in the State‖ (New York State Education Department, 2010). 32
In general, the federal government is not ―superior‖ to New York State in education law; however, as a condition of accepting federal funds for education (such as Title I and Race to the Top, the state is bound to comply with federal regulations associated with receiving those funds.
respect, describing New York as ―the nation‘s most comprehensive and unified educational system,‖ and the ―oldest, continuous state education entity in America‖ (New York State Education Department, 2010b).33
New York City. As described above, authority for the administration of the New York
City public schools is wholly granted and controlled by the State.34 The local governing
authority, referred to as the New York City Department of Education, consists of the New York City Board of Education (now known as the ―Panel for Educational Policy,‖ but authorized by state law as the Board of Education), and the New York City Schools Chancellor. New York Education Law § 2590-b grants governance authority to the New York City Board of Education: as stated in the Preamble to the Panel for Educational Policy Bylaws, ―The Board of the City School District of the City of New York is created by the Legislature of the State of New York and derives its powers from State law‖ (Department of Education of the City School District of the City of New York). Education Law § 2590-h authorizes the ―office of chancellor of the city district,‖ and specifies the ―powers and duties‖ of the chancellor of the New York City public schools, ―as the superintendent of schools and chief executive officer for the city district.‖35
Section § 2554 further authorizes the New York City Board of Education to ―prescribe such regulations and by-laws authorizing the chancellor to exercise such of its administrative and ministerial powers…for the general management, operation, control, maintenance and discipline
33
History of the Board & the State Education Department. Retrieved June 17, 2011, from http://www.regents.nysed.gov/about/history-nysed.html.
34
The legal authority of the New York State Commissioner of Education over local education officials is explicit: ―The Commissioner of Education has the extraordinary power, not often employed, to issue an order withholding state aid or removing a school district officer or board, when there has been a willful neglect of duty or violation of the law. The Commissioner regularly acts in a judicial capacity when he hears and decides appeals arising from official acts or decisions of school district meetings, boards, or officers...‖ New York State Education Department. (2008, December 8).
35
of the schools.‖36
Section § 2590-d, ―By-laws; regulations and decisions,‖ grants the city board and chancellor the legal authority to ―prescribe such by-laws and regulations as may be
necessary to make effectual the provisions of this chapter.‖37
Three bodies of New York City public school policy are important. Two prescribe the bylaws and regulations authorized by New York Education Law § 2554 and § 2590-d: the
Bylaws of the Panel for Educational Policy, and the Regulations of the Chancellor. The third is
the United Federation of Teachers Collective Bargaining Agreement, or ―UFT contract.‖ The UFT contract, too, derives its legal authority directly from the New York State Constitution. In the Constitution‘s ―Bill of Rights,‖ Article I, Section 17 (entitled ―Labor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed‖) states: ―Employees shall have the right to organize and to bargain collectively through representatives of their own choosing…‖38
All New York City school teachers are members of the United Federation of Teachers and represented by the UFT. As the UFT contract states: ―The Board recognizes the Union as the exclusive bargaining representative of all those assigned as teachers in the regular day school instructional program‖ (United Federation of Teachers Contract). The labor contract negotiated by the UFT and the New York City Department of Education
constitutes a highly influential source of educational policy in New York City.
In summary, policy data was collected from six bodies of policy documents, which together govern the operation and management of the New York City public schools: the New York State Constitution; Consolidated Laws of New York State (especially EDN, Titles 1, 2, and
36
N.Y. Educ. Law § 2554(13)(b) 37
N.Y. Educ. Law § 2590-d(1) 38
4); New York Codes, Rules and Regulations (Title 8, Chapters I and II); Bylaws of the Panel for Educational Policy of the Department of Education of the City School District of the City of New York; Regulations of the Chancellor of New York City public schools; and the United Federation of Teachers Collective Bargaining Agreement. (See Appendices A-F for detailed list of policies analyzed.)
Education Law § 3020-a decisions. Finally, an additional source of policy data was
used, which—though extremely scanty—turns out to reveal the heart of teacher accountability in New York. As discussed in detail below, the only legal means for dismissing or ―disciplining‖ a tenured teacher in New York is through the legally-mandated, court-like due process procedures specified in Education Law § 3020-a ―Disciplinary procedures and penalties.‖ The decisions filed at the conclusion of those hearings are official policy documents, required by New York State law. To obtain these written decisions, a New York Freedom of Information Law (FOIL) request was submitted to the New York State Education Department; this request was for:
All written decisions rendered by the hearing officer at the conclusion of disciplinary hearings conducted under Section 3020-a of the Education Law between January 1, 1997 and January 1, 2007 regarding charges brought against teachers employed by The Board of Education of the City School District of New York.
The FOIL request was partially successful. The lawyer assisting with obtaining the decisions was told by the New York State Education Department Records Access Officer that a total of 270 decisions were filed over the 10-year period from 1997 to 2007: 263 included a judgment of ―guilt‖ of at least one charge, and in seven cases the teacher was exonerated of all charges brought.39 The State Education Department refuses to release copies of decisions in which the
39
This represents an average of approximately 27 cases per year, constituting 0.035% of New York City‘s 78,000 teachers.
teacher was ―found innocent‖ of all charges, so the granting of the FOIL request did not include release of those seven decisions.40 Since the number of ―innocent‖ decisions was stated to be so small, access was thus apparently granted to almost all of the decisions filed. To date, a total of 208 decisions have been received and used in the study. These 208 decisions were sent in three separate mailings, over the course of well over a year, requiring repeated phone calls and written reminders. The New York State Education Department now claims that these 208 decisions sent represent the total required by the FOIL request, but has refused to confirm that in writing.41